New Jersey Divorce and Family Lawyer Blog
Generally, when a motion to modify a child support obligation is made New Jersey’s “anti-retroactivity statute” only allows a modification in child support retroactive to the date that the motion was filed. N.J.S.A. specifically states:
“No payment or installment of an order for child support, or those portions of an order which are allocated for child support established prior to or subsequent to the effective date of P.L.1993, c. 45 (C.2A:17-56.23a), shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent. The written notice will state that a change of circumstances has occurred and a motion for modification of the order will be filed within 45 days. In the event a motion is not filed within the 45-day period, modification shall be permitted only from the date the motion is filed with the court.” (Emphasis added).
The “anti-retro activity statue” was specifically enacted to address the effective date of the modification of an already existing support application. However, a different issue presents itself when a litigant files a Complaint for Divorce in which the litigant includes a request for child support, but the litigant never files a pendente lite motion seeking interim child support during the litigation and instead leaves the issue of child support to be resolved by the family court at the time of trial. This was the situation in a recently published family court opinion of the Hon. L.R. Jones, J.S.C. in the matter of Kakstys-v-Stevens, —A.3d — (Ch. Div. 2015). In Kakstys, the parties separated in November, 2013 when the Husband moved out of the marital home. The Wife filed a Complaint for Divorce in March, 2014. During this time the Husband did not pay child support, and neither party filed a motion to ask the court to establish a pendente lite child support order during the litigation. Finally, in January, 2015, the Wife filed a pendente lite motion seeking an award of child support that was retroactive at the very least to the filing of the Complaint for Divorce.
Presumably, the “anti-retro activity statue” would limit the Wife’s request for retroactive child support to the date that she filed her pendente lite child support motion, not the the earlier date upon which she filed her Complaint for Divorce. Judge Jones instead explained that “a close reading of the anti-retroactivity statute, however, reflects that this is not the case. The anti-retroactivity language of N.J.S.A. 2A:17-56.23a references modifications to support orders, meaning existing orders that were already established and entered by the court . . .”. The anti-retroactivity statute does not deal with the effective retroactive date an initial child support order, following the filing of a Complaint for Divorce containing a request for child support. Judge Jones reasoned that requiring a party who filed a divorce complaint that included a count for child support to also file a motion seeking pendente lite child support support in order to the preserve the claim of retroactivity would be inequitable.
Under the “FM” docket, the “dissolution” docket regarding cases where litigants are seeking a divorce, certain financial issues are decided based on the date that the divorce complaint was filed, not based on the filing date of some interim motion. Painter v. Painter, 65 N.J. 196, 218 (1974). Therefore, using the date of the filing of a Complaint for Divorce that includes a request for child support as the effective date for the entry of a child support order may be preserved for trial as well. The purpose of a divorce complaint is to put the other party on notice of the relief being requested of him or her in court. Additionally, in in “non-dissolution” cases (those bearing an “FD” docket number), child support is determined soon after the filing of a Verified Complaint for child support and is made retroactive to the date that the Verified Complaint was filed without a litigant having to make a subsequent motion for interim child support. Hence, Judge Jones’ decision seems to be a reasonable improvement and clarification of the practice of awarding child support.